NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHELSEA HAMILTON; ALYSSA HERNANDEZ, on behalf of themselves and all others similarly situated,

Plaintiffs

- Appellants,

v. WAL

- MART STORES, INC., a corporation; WAL

- MART ASSOCIATES, INC., a corporation; DOES, 1 through 50, inclusive,

Defendants

- Appellees. No. 19

- 56161
D.C. Nos. 5:17

- cv - 01415

- AB

- KK 5:17

- cv - 01485

- AB

- KK

MEMORANDUM *

CHELSEA HAMILTON; ALYSSA HERNANDEZ, on behalf of themselves and all others similarly situated,

Plaintiffs

- Appellees,

v. WAL

- MART STORES, INC., a corporation; WAL

- MART ASSOCIATES, INC., a corporation, Defendants

- Appellants, and No. 20

- 55223
D.C. Nos. 5:17

- cv - 01415

- AB

- KK 5:17

- cv - 01485

- AB

- KK

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILE D

JUN 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

DOE S, 1 through 50, inclusive,

Defendant. Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding Argued and Submitted May 14, 2021 Pasadena, California Before: BERZON and BYBEE, Circuit Judges, and CARDONE, * * District Judge. Chelsea Hamilton and Alyssa Hernandez (“Plaintiffs”) appeal, and Wal

Mart Stores, Inc. and Wal

- Mart Associates, I nc. ( collectively, “Walmart”) cross appeal, the district court’s judgment following a jury trial in a wage - and

- hour class action. In a concurrently filed opinion, we reverse and remand Hernandez’s PAGA claims. In this memorandum disposition, w e affirm in part, reverse in part, and remand Plaintiffs’ remaining claims raised on appeal

. 1. The district court did not err in denying Plaintiffs’ motion for judgment as a matter of law with regard to th e alternative workweek schedule ( “ AWS ” ) election

. Under California law, “[p]rior to [a] secret ballot vote, any employer who proposed to institute an alternative workweek schedule shall have made a

** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation.3

disclosure in writing to the affected employees, including the effects of the proposed arrangement on the em ployees’ wages, hours, and benefits.” Cal. Code Regs. tit. 8 , § 11070(3)(C)(3). Viewing the evidence in the light most favorable to Walmart and drawing all reasonable inferences in Walmart’s favor, see Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 149

– 50 (2000), there was sufficient evidence at trial to support the jury’s conclusion that Walmart properly implemented the AWS. The evidence before the jury included that b oth before and after implement ing the AWS, Walmart offered employees 24 hou rs of paid sick leave. Regardless of whether Walmart was required under California Labor Code § 246 to provide three days of sick time rather than 24 hours when it switched schedules, Walmart’s disclosures to employees were accurate. And the change to th e AWS did not waive the employees’ rights under section 246 , as the sick time requirements

—

however they are interpreted

— still apply to Walmart. S ufficient evidence also supports the jury’s conclusion that Walmart adequately described the effects of the AW S as compared to the schedule the employees were currently working. Nothing in the statute requires an employer to disclose an alternative schedule it might offer in the event of a “no” vote. Finally, viewing the evidence in the light most favorable to W almart, the jury could reasonably have concluded that Erin Schwartz was properly excluded4

from the election

. Walmart’s witnesses testified that Schwartz ’s original position was not included in the AWS, that she “could have transferred to another departmen t,” and that employees at Walmart frequently change positions and shifts

. The jury had sufficient evidence to conclude that after the vote but before implementation of the AWS, Schwartz switched to a position that would be covered by the proposed AWS schedule. As the district court properly denied Plaintiffs’ motion for judgment as a matter of law on the overtime claims, Plaintiffs are not entitled to a new trial on the derivative claim for waiting time penalties under California Labor Code § 203.
2. The district court did not abuse its discretion with regard to the AWS issue in excluding evidence that some Walmart employees began work after the vote but before implementation of the AWS. We reverse evidentiary rulings only when we are “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel , 211 F.3d 1172, 1175 (9th Cir. 2000).
A ll the pretrial materials and jury instructions

— which Plaintiffs do not challenge

— focused on Plaintiffs’ theory that Walmart violated the statutory requirements for an AWS , not on a theory that Walmart engaged in “subterfuge” in scheduling start dates for employees

. The district court’s determination that evidence regarding the 117 people who started after the election was not relevant5

to Walmart’s statutory obligations to “affected employees” was reasonable

. T he relevant wage orders define “employ” as “to engage, s uffer, or permit to work , ” Cal. Code Regs. tit. 8, § 11070 , and Martinez v. Combs , 49 Cal. 4th 35 (2010) , held that “engage” refers only to an ordinary common law employment relationship , id. at 64

. The district court’s exclusion of evidence concerning pe ople who had not begun working at the time of the election was therefore not an abuse of discretion

. 3 . The district court abused its disc retion in dismissing Plaintiffs’ individual unpaid wage claims after decertifying the security checkpoint sub class. An order denying class certification or decertifying a class is not generally a final judgment on the merits of a claim, and ordinarily, “p laintiffs may pursue their individual claims on the merits to final judgment.” Microsoft Corp. v. Baker , 137 S. Ct. 1702, 1706 (2017). The challenged decertification was premised entirely on Plaintiffs’ lack of a workable method for calculating class

- wid e damages, a n issue that does not apply to Plaintiffs’ individual claims. T he district court nonetheless dismiss ed the individual claims based on its conclusion that Plaintiffs abandoned their individual claims or misled Walmart as to the status of those claims. “Dismissal under a court’s inherent powers is justified in extreme circumstances, in response to abusive litigation practices, and to insure the orderly administration of justice and the integrity of the court’s orders.” Halaco Eng’g Co.6

v. Cost le , 843 F.2d 376, 380 (9th Cir. 1988) (citations omitted). The record does not support the factual conclusions meeting this standard. Walmart argues otherwise, maintain ing that “during meet and confer sessions, ‘Plaintiffs’ counsel confirmed that Plaint iffs Hamilton and Hernandez would not be pursuing claims for off

- the

- clock work or unpaid overtime in their individual capacities

. ’” But the meet

- and

- confer sessions Walmart references culminated in “ the parties’ March 1, 2019 Final Pretrial Conference Order .” Those sessions occurred before the district court decertified the security checkpoint subclass on March 4

. P rior to that decertification, Plaintiffs had acknowledged only that they were not pursuing individual claims as to theories not then certified. In contrast, Plaintiffs represented throughout the pretrial process that they were pursuing the wage claim on the security checkpoint theory in both their individual and representative capacities. N o thing in the record su ggests that Pl aintiffs represented to Walmart during the pre

- March 1 meet

- and

- confer sessions that they would abandon individual claims as to subclasses that might later be decertified. Plaintiffs’ pursuit of their individual unpaid wage claims after dec ertification was therefore not an “abusive litigation practice[]” nor an “extreme

c ircumstance[]

. ” Halaco , 843 F.2d at 380. D ismissal under the court’s inherent
powers was not supported by the record and so was an abuse of discretion

. See United States v. Hinkson , 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).7

4 . The district court erred in concluding that Plaintiffs lacked standing to bring their wage statement claims under California Labor Code § 226(a)

. Magadia v. Wal

- Mart Assocs., Inc. , 999 F.3d 668, 679

– 80 (9th Cir. 2021) . We nonetheless affirm the dismissal of those claim s, as Magadia established that the challenged wage statements do not violate section 226(a)

. Id. at 680

– 82

. 5 . The district court did not err in denying Pla i ntiffs’ Rule 59(e) motion for prejudgment interest. “A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Kona Enter s. , Inc. v. Est ate of Bishop , 229 F.3d 877, 890 (9th Cir. 2000). Here, Plaint iffs had filed an earlier motion for prejudgment interest. The district court did not abuse its discretion in determining that Plaintiffs could have sought prejudgment interest for meal

- break premiums under Cal ifornia Civ il Code § 3287 (a) as part of their initial request. Plaintiffs contend that they could not have reasonably raised section 3287 (a) as a basis for prejudgment interest before Naranjo v. Spectrum Security Services,
Inc. , 40 Cal. App. 5th 444 (2019), review granted , 455 P.3d 704 (Jan. 2, 2020) , held that “ unpaid premium wages for meal break violations accrue prejudgment interest at 7 percent ” under section 3287 (a) , id. at 452 , 476

. As an initial matter, while review is pending before the California Supreme Court, Naranjo “has no binding o r precedential effect, and may be cited for potentially persuasive value8

only.” Cal. R. Ct. 8.1115(e)(1). But Plaintiffs still could have pursued interest under section 3287 (a) in their initial request. California courts had previously denied prejudgmen t interest for meal

- break premiums under other sections but suggested that § 3287 (a) might be a plausible basis for interest. Bernstein v. Virgin Am., Inc. , 365 F. Supp. 3d 980 , 989 n.10 (N.D. Cal. 2019)

. L ike the plaintiffs in Naranjo , Plaintiffs here could have sought interest under section 3287(a) before the appellate court’s decision

. We therefore affirm the district court’s denial of Plaintiffs’ Rule 59(e) motion.
6 . Finally, the district court did not err in certifying, and sub sequently denying a motion to decertify, the meal

- break class , nor did it err in denying Walmart ’s motion for judgment as a matter of law as to the same class. (i) “When reviewing a grant of class certification, we accord the district court noticeably mo re deference than when we review a denial of class certification.” Abdullah v. U.S. Sec. Assoc s ., Inc. , 731 F.3d 952, 956 (9th Cir. 2013) (quoting Wolin v. Jaguar Land Rover N. Am., LLC , 617 F.3d 1168 , 1171 (9th Cir. 2010) )

. California law requires that an employer provide a meal period to employees in which the employer “ relieves its employees of all duty, relinquish es control over their activities and permits them a reasonable opportunity to take an uninterrupted
30

- minute b reak, and does not impede or discourage them from doing so

. ” Brinker9

Rest. Corp. v. Superior Ct. , 53 Cal. 4th 1004 , 1040 (2012)

. Plaintiffs’ meal

- break theory is that Walmart’s standard practice

— requiring employees who wanted to leave the building on the ir meal breaks to go through a security check after clocking out

— impermissibly impeded or discouraged employees at the Chino facility from taking meal breaks. Class certification under Rule 23(b)(3) requires the court to “find[] that the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The gravamen of Walmart’s arguments in the cross

- appeal is that California law requires a subjective showing that each employe e felt impeded or discouraged

— or was actually prevented from

— taking their lunch break in the way they would have wanted. But the Brinker standard focuses on the employer’s obligation to provide an uninter rupted meal break free from impediment or discourag ement. In the analogous context of employer control under the meal

- break statute , Ridgeway v. Walmart Inc

. , 946 F.3d 1066 (9th Cir. 2020) , concluded that “ the question of control boils down to whether the employee may use break or non

- work time however he or she would like ,” a “ case - specific approach [which] focuses on the level of the employer’s control on employees ” not on whether every employee wants to use their break in an unauthorized way. Id. at 1079

.10

Here, a ll employees in the class were subject to the same security check requirements before leav ing the building

. Plaintiffs’ theory of liability directly challeng ed that practice . Plaintif fs’ “theory of liability

—

that [ the employer ] has a uniform policy, and that that policy, measured agai nst wage order requirements, allegedly violates the law

— is by its nature a common question eminently suited for class treatment.” Brinker , 53 Cal. 4th at 1033 . The district court ’s certification of the meal

- break class was therefore not an abuse of discre tion

. (ii) The jury determined that Walmart’s security check policy was a n impediment to employees’ ability to take an uninterrupted meal break outside the control of their employer

. That conclusion was supported by substantial evidence.
T o leave the bu ilding for lunch, employees were required to go through security after clocking out, which included remov ing clothing with any metal parts , put ting any personal items in a clear bin for inspection , and prov ing that any phones they were carrying were not stolen

— for instance by showing a personalized home screen or entering a passcode. Viewing this evidence in the light most favorable to Plaintiffs, such security checks to leave the building after clocking ou t could be determined to be unlawful impediments on employees’ meal breaks

. As the jury ’s special verdict determined that all 452,491 meal break s calculated by Plaintiffs were subject to penalties for violat ing California’s meal

-11

break requirements, Walmar t’s argument that more than a de minimis number of class members were uninjured is unavailing. T he jury had sufficient evidence to concl ude that Walmart provided no meal breaks free from i mpediments or discourage ment

. We therefore affirm the district court’s den ial of Walmart’s motions for decertification and judgment as a matter of law. The parties shall bear their own costs on appeal.
AFFIRMED IN PART , REVERSED IN PART , AND REMANDED.